Public Lands Council v. US DEPT. OF INTERIOR, 95-CV-165-B.

• Court: United States District Courts. 10th Circuit. District of Wyoming
• Citation: 929 F. Supp. 1436
• Docket Number: No. 95-CV-165-B.,95-CV-165-B.
• Parties: PUBLIC LANDS COUNCIL, a non-profit membership organization on behalf of its members; National Cattlemen's Association, a non-profit membership organization on behalf of its members; American Sheep Industry Association, a non-profit membership organization on behalf of its members; American Farm Bureau Federation, a non-profit membership organization on behalf of its members; Association of National Grasslands, a non-profit membership organization on behalf of its members, Petitioners, v. UNITED STATES DEPARTMENT OF the INTERIOR SECRETARY, a/k/a Bruce Babbitt, in his official capacity; Acting Director, U.S. Bureau of Land Management, a/k/a Michael Dombeck, in his official capacity; Department of Interior; Bureau of Land Management, Respondents.
• Decision Date: 12 June 1996

929 F. Supp. 1436

PUBLIC LANDS COUNCIL, a non-profit membership organization on behalf of its members; National Cattlemen's Association, a non-profit membership organization on behalf of its members; American Sheep Industry Association, a non-profit membership organization on behalf of its members; American Farm Bureau Federation, a non-profit membership organization on behalf of its members; Association of National Grasslands, a non-profit membership organization on behalf of its members, Petitioners,
v.
UNITED STATES DEPARTMENT OF the INTERIOR SECRETARY, a/k/a Bruce Babbitt, in his official capacity; Acting Director, U.S. Bureau of Land Management, a/k/a Michael Dombeck, in his official capacity; Department of Interior; Bureau of Land Management, Respondents.

No. 95-CV-165-B.

United States District Court, D. Wyoming.

June 12, 1996.

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Constance E. Brooks, Denver, CO, Michael B. Marinovich, Denver, CO, Calvin E. Ragsdale, Green River, WY, argued, Paul R. Frischknecht, Manti, UT, William J. Thomas, Sacramento, CA, William Gerry Myers III, Washington, DC, of counsel, for petitioners

John W. Watts and Gary B. Randall, argued, U.S. Department of Justice, Environment and Natural Resources Division, Washington, DC, L. Robert Murray, Asst. U.S. Attorney (WY), Cheyenne, WY, Laura B. Brown, Office of the Solicitor, U.S. Department of the Interior, Washington, DC, Mark Stiles, for respondents.

ORDER ON PETITION FOR REVIEW

BRIMMER, District Judge.

In February, 1995, the Secretary of the Interior, Bruce Babbitt, promulgated new regulations governing the administration of livestock grazing on public lands managed by the Bureau of Land Management ("1995 regulations"). The regulations became effective on August 21, 1995.

The petitioners challenge these new regulations, claiming that portions of the regulations violate the Taylor Grazing Act, the Federal Land Policy Management Act, the

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Public Rangelands Improvement Act, the National Environmental Policy Act, and the Administrative Procedure Act (APA). The petitioners also claim that the regulations deny them due process and subject them to double jeopardy, and otherwise lack a rational basis. The petitioners ask the Court to declare several of the 1995 regulations unlawful and enjoin their implementation

Standard of Review

A district court sits as an appellate court when reviewing agency action. Olenhouse v. Commodity Credit Corp., 42 F.3d 1560, 1580 (10th Cir.1995). Under the APA, this Court must uphold agency action unless it is arbitrary and capricious, exceeds statutory authority, or violates the Constitution. 5 U.S.C. § 706(2); see also Mountain Side Mobile Estates v. Secretary of HUD, 56 F.3d 1243, 1250 (10th Cir.1995).

Agency action is arbitrary and capricious if there is no rational basis for the action or if the agency fails to consider important relevant factors. Woods Petroleum Corp. v. Department of Interior, 47 F.3d 1032, 1037 (10th Cir.1995). Public Lands Council bears the burden of proving that the Department of Interior acted arbitrarily and capriciously, exceeded its statutory authority, or violated the Constitution.

Analysis

I. Elimination of the Grazing Preference

The 1995 regulations replace the term "grazing preference" with the term "permitted use." Public Lands Council argues that this eliminates the grazing preference and thus violates the Taylor Grazing Act. The government disagrees and argues that the change in terminology is a change in form, not substance, and the new rules do not eliminate or interfere with anything in the Taylor Grazing Act.

Congress enacted the Taylor Grazing Act in 1934. Pursuant to the Act, the Secretary identified public lands "chiefly valuable for grazing and raising forage crops" and placed these lands in grazing districts. 43 U.S.C. § 315. After designating these districts, the Secretary began issuing permits pursuant to the Taylor Grazing Act, which provides:

The Secretary of the Interior is hereby authorized to issue or cause to be issued permits to graze livestock on such grazing districts to such bona fide settlers, residents, and other stock owners as under his rules and regulations are entitled to participate in the use of the range.... Preference shall be given in the issuance of grazing permits to those within or near a district who are landowners engaged in the livestock business, bona fide occupants or settlers, or owners of water or water rights.

43 U.S.C. § 315b.

Thus, the Department of Interior engaged in a lengthy adjudication process to determine who was eligible for a grazing preference. This process began in the 1930's and took nearly 20 years to complete. Applicants were divided into five classifications with different priorities assigned to each class of applicants. The Department of Interior reviewed applications and recommendations of local boards, and issued adjudication decisions awarding grazing preferences to qualified applicants. The term "grazing preference" thus came to represent an adjudicated right to place livestock on public lands. This right was measured in Animal Unit Months (AUMs), the amount of forage necessary to sustain one animal for one month.

The grazing preference attached to the base property, and followed the base property if it was transferred. The adjudication process provided predictability and security to livestock operators who remained in one area. This system comported with congressional intent, which was to provide stock operators with "some type of assurance as to where and what kind of range they may have and depend upon for their stock, what they can definitely rely upon in the way of pasturage." 78 Congressional Record at 5371.

Once the Department of Interior granted a grazing preference, the Taylor

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Grazing Act required that "grazing privileges recognized and acknowledged shall be adequately safeguarded." 43 U.S.C. § 315b. This language imposes on the Secretary an affirmative duty to protect grazing privileges. Oman v. United States, 179 F.2d 738, 742 (10th Cir.1949)

Despite this safeguarding requirement — which protects long-established grazing preferences — the 1995 regulations eliminate the adjudicated grazing preferences. They do so by using the term "permitted use" which is defined as "the forage allocated by, or under the guidance of, an applicable land use plan for livestock grazing in an allotment under a permit or lease and is expressed in AUMs." 43 C.F.R. § 4100.0-5 (1995). The term "permitted use" has no connection to the painstakingly adjudicated "grazing preferences." Under the 1995 regulations, a permittee no longer has an adjudicated right to graze a predictable number of livestock on public lands.

A "permitted use" does not enjoy the same protection that an adjudicated "grazing preference" received. A "grazing preference" could not be canceled, suspended, or reduced without an evidentiary hearing that afforded due process to the permittee. 43 U.S.C. § 315h; Oman, 179 F.2d at 742. The Secretary's substitution of a right of renewal provides less protection and violates the Taylor Grazing Act because it fails to adequately safeguard the recognized grazing preferences.

The change also reduces predictability and certainty. Bank loans are often based on carrying capacity. A permittee without a definite and certain grazing preference may be unable to obtain necessary financing and be forced out of the livestock industry. See 78 Cong.Rec. at 5371.

Although the Taylor Grazing Act gives the Secretary the power to do "any and all things necessary" to protect the rangeland, 43 U.S.C. § 315a, this general grant of authority is not so broad that it allows the Secretary to violate the Act's specific mandate to adequately safeguard grazing preferences.

The Secretary's expressed desire to make grazing regulations similar to Forest Service rules is not a reasoned explanation. The Taylor Grazing Act does not apply to national forests, and the Forest Service did not engage in a lengthy adjudication process to establish grazing preferences.

Additionally, grazing permits issued by the Forest Service enjoy much less protection that a Taylor Grazing Act grazing preference. The Forest Service has broad discretion to deny or refuse to renew permits and is not required to provide a permittee or applicant with notice and a hearing. In contrast, the Taylor Grazing Act requires the Secretary to safeguard grazing preferences and provides for notice and a hearing.

With a mere stroke of his pen, the Secretary has boldly and blithely wrested away from Western ranchers the very certainty, the definitiveness of range rights, and the necessary security of preference rights that their livestock operations require. Congress gave Western ranchers these rights by enacting the Taylor Grazing Act, and many decades of satisfactory operations and the course of case by case adjudications have confirmed these rights. The Court cannot ignore the Secretary's disregard of his congressionally imposed duty; it must be stopped before it wreaks havoc with the ranching industry that Congress has tried to preserve.

For these reasons, the Court holds that the 1995 regulations violate the Taylor Grazing Act by failing to adequately safeguard adjudicated grazing preferences and that the 1995 regulations lack a reasoned basis. The Court therefore concludes that the Secretary exceeded his statutory authority by enacting this regulation.

II. Affiliate Regulations

Before a permittee can renew his grazing permit, the Department of Interior must determine that the applicant, and any affiliate(s) of the applicant, have substantially complied with the terms and conditions of

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the original permit. 43 C.F.R. § 4110.11(b)(1) (1995). An applicant seeking a new permit will not receive it if the applicant or any affiliate of...